Daily Archives: May 26, 2017

Landlord tenant case prompts conflicting decisions

Attorney claims judge taking ‘unprecedented’ action

By: Bennett Loudon

After one of her rulings was overturned by Monroe County Court Judge Christopher S. Ciaccio, Rochester City Court Judge Ellen M. Yacknin issued a new decision that essentially overturned Ciaccio and reinstated her original finding.

In January 2016, Cornhill went to court to evict a tenant and get a $4,735 judgment to collect unpaid rent, fees and attorney’s fees from the tenant who has never responded to the petition and never appeared in court on the case.

In February 2016, Yacknin granted the eviction warrant, but denied the money judgment because the tenant was never served personally with the notice.

‘All over the place’

Cornhill appealed Yacknin’s decision and, in February 2017, Ciaccio reversed Yacknin and sent the case back to her “for entry of a monetary judgment in favor of the petitioner with attorney’s fees, and for any further proceedings consistent with the decision of this court.”

Attorneys who frequently represent landlords in similar cases have applauded Ciaccio’s decision as “extremely significant.”

Historically, when a tenant can’t be located, leaving a summons with someone else, or “nail and mail” service, has not been allowed. But with Ciaccio’s decision, substituted service became acceptable in Monroe County.

“The City Court judges do not like the decision. They’ve made that known to me and to other attorneys, but it says what it says,” Dick said.

The old rule is based on the decision in the 1929 Fourth Department case In Re McDonald, which relied on statutes in the Civil Practice Act (CPA) that no longer exist. In 1963 the state Legislature enacted the Civil Practice Law and Rules to replace the (CPA).

This question has been argued in many local courts across the state, with differing results.

“Courts are all over the place on it,” Dick said.

Despite Ciaccio’s ruling, when the case was sent back down, Yacknin set out to determine whether Cornhill “has satisfied the legal prerequisites for the entry of a default money judgment.”

Yacknin wrote that Ciaccio’s decision only found that a default money judgment was not prohibited because of the way the notice was served on the tenant.

Ciaccio did not “consider whether petitioner satisfied the mandatory prerequisites for the entry of a default money judgment in this action,” Yacknin wrote in a footnote to her decision dated May 15.

“She’s in violation of the order and it’s unprecedented for a trial court judge to do something like this,” Dick said.

“Any issue he did or did not address is really none of her business. The order from the court is to enter judgment, period. She can question him, but she cannot defy him and she is defying him.”

Due diligence

Yacknin ruled that Cornhill’s efforts to personally serve the tenant were inadequate. She wrote that “nail and mail” service must be preceded by “a minimum of three personal service attempts.”

Two of those attempts must be “on dates and times when it can reasonably be expected that the person to be served will not be at work or in transit,” Yacknin wrote.

Cornhill’s “prior personal service attempts failed to satisfy this prerequisite for due diligence,” she wrote.

According to the process server’s affidavit, service was attempted at the tenant’s home at: 10:25 a.m., Jan. 19, 2016; 4:20 p.m., Jan. 20, 2016; and at 6:36 p.m., Jan. 20, 2016.

“All three attempts at personal service were at times that a person could normally be expected to be at work or in transit from work. As such, these attempts were deficient as a matter of law to satisfy the due diligence requirements,” Yacknin wrote.

Cornhill’s personal service attempts also failed to comply with a second essential condition required by New York appellate courts. A process server must make “genuine inquiries” to find out where the person to be served works, so they can try to serve them at their workplace, Yacknin wrote.

The server also must try to talk to neighbors to find out where the party might be found.

The process server’s affidavit “is devoid of any indication that he made any inquiries of neighbors to attempt to learn where respondent worked or where she might be found. The affidavit does not indicate that he asked petitioner where respondent worked,” Yacknin wrote.

“For this reason as well, petitioner failed to exercise the due diligence necessary to entitle it to a default money judgment against respondent following conspicuous service of process,” she wrote in denying the request for a default money judgment.

Dick said he is looking into how to address Yacknin’s latest decision.